The following article authored by Joel Feldman, EndDD.org was published in the HuffPost Impact, May 2, 2016:
Drivers being distracted by their smartphones while driving is all too common. Whether it’s texting, accessing Facebook, taking selfies or using other apps, including Snapchat, we have become a nation of distracted drivers. The estimates of 10 people being killed and more than a thousand injured daily from distracted driving are likely far too conservative. In 2015, the AAA Foundation for Traffic Safety and the University of Iowa released a study suggesting that distracted driving plays a much larger role in crashes than government statistics suggest, with more than 50 percent of teen crashes attributable to distraction. Smartphone use and interacting with passengers were the most frequent distractions Erie Insurance released the results of a study that showed that some of us will do just about anything while driving despite the risk, including using apps on our smartphones.
As an attorney for more than 30 years, I have represented those injured and the loved ones of those killed through all types of distracted driving. I also drove distracted frequently until my daughter Casey was killed by a distracted driver. So, I look at these issues as a lawyer, but more importantly, also as someone who lives with the pain of a senseless distracted driving crash every day.
So what is different about the “Snapchat distracted driving lawsuit?” It is because not only was the distracted driver sued, but also Snapchat, the manufacturer of the app the driver was using at the time of the crash. In the Georgia lawsuit Maynard v. McGee and Snapchat, Inc., it is alleged that Crystal McGee, an 18-year-old, was using the Snapchat application and caused a crash that seriously inured Mr. Maynard. According to the lawsuit, Mr. Maynard has suffered permanent brain injury and has not been able to return to work. McGee, like lots of other teens, had downloaded the Snapchat application and used it to communicate with friends. The theory for also suing Snapchat is that it is alleged that Snapchat’s “speed filter” encouraged Ms. McGee to drive at an excessive and dangerous speed. When using the speed filter, the speed at which the user is going will be captured on the video or photo being taken. It has been reported that Ms. McGee was travelling at more than 100 miles per hour at the time of the crash.
So is it fair to hold Snapchat legally liable for the alleged incredibly stupid and reckless behavior of Ms. McGee? Isn’t it the responsibility of the driver to make safe driving decisions? Legally, the question is does Snapchat have a duty to third persons who are injured as a result of the use of its application or product? When deciding if a duty exists under particular circumstances, courts look at whether the harm suffered should have been foreseeable to the actor, in this case Snapchat. Should it have been foreseeable to Snapchat that providing the speed filter would result in the use of its application by drivers in a fashion likely to cause injury to others? Should Snapchat, as the allegations contend, have recognized that by providing the speed filter it would encourage drivers to drive faster and faster to record a higher speed on their photos? Additionally, does it seem fair to extend liability in this case to Snapchat for the negligent and likely criminal conduct of the driver?
Many jurisdictions do extend legal liability for the reckless and criminal acts of others in order to protect innocent third persons. The best examples include permitting lawsuits against bars by those injured by drunk drivers served to excess, or against businesses where there is a history of criminal conduct on the premises and patrons are assaulted or killed and there are allegations of inadequate security.
It is likely and certainly hoped that Snapchat did not intend for users to try to drive faster and faster, at speeds in excess of 100 mph, while using its app to record higher speeds. But what legitimate purpose does the speed filter have? I don’t think we want people to use Snapchat to measure and record their speed while driving, or bicycling, or skiing or snow boarding or doing anything that requires one’s concentration to do it safely. Perhaps Snapchat wanted users to only use its speed filter while jogging or walking which could be done safely because the speeds are much lower. If the legitimate and safe uses of the speed filter are limited, then perhaps it is not unreasonable to hold Snapchat liable for providing the temptation to drivers to drive faster to record higher speeds and putting the public in danger. A Georgia judge will make that determination in the near future.
So much for legal liability. What about Snapchat’s moral responsibility? And by that I mean what should and can Snapchat do today to prevent future tragedies regardless of its technical legal responsibility in this specific case? Snapchat should remove the speed filter and work with other app manufacturers in education campaigns to educate users about the dangers of distracted driving. That would include placing warnings on all apps that appear when the app is engaged warning drivers not to use the apps while driving. To that end the organization Partnership for Distracted Driving (of which my organization End Distracted Driving is a partner) is working on this specific issue to try to have smartphone app manufacturers provide warnings on their apps about not using them while driving. To see the petition click here.
Sometimes it takes tragedy to initiate positive change. I know that as do the thousands who have lost loved ones to distracted driving. Let’s use this tragic case as an opportunity to save lives by doing the right thing. Snapchat can be a leader in this cause.
Joel Feldman is an attorney in Philadelphia with the law firm of Anapol Weiss. After his daughter Casey was killed by a distracted driver he obtained a masters in counseling and co-founded EndDD.org (End Distracted Driving) with his wife Dianne. EndDD.org has a network of speakers across the country and provides presentations without cost to schools. Joel can be reached at [email protected]